Collective Bargaining Agreement Protects Company From BIPA Suit by Non-Union Employee

On July 2, Judge Sunil Harjani of the Northern District of Illinois issued an opinion in Sanders v. E.A. Sween Company holding that an employee who was not a member of a union, but was a member of a collective bargaining unit under the terms of a collective bargaining agreement (“CBA”), could not bring a private action against the employer for an alleged violation of the Illinois Biometric Privacy Act (“BIPA”) as that claim was preempted by federal labor laws.

The plaintiff, George Sanders, was a probationary employee at E.A. Sween Company and had not yet worked long enough to be required to join the union under the CBA. He was employed as a driver and alleged that the company violated BIPA by collecting his biometric information when he clocked in and out without first providing the required disclosures or obtaining consent. The company argued that, notwithstanding the fact that Mr. Sanders was not a member of the relevant union, the BIPA claim was still preempted by the Labor Management Relations Act.

Although BIPA claims often involve few defenses, the Seventh Circuit has repeatedly held that BIPA claims are preempted by federal labor laws when union members bring claims against employers “if the union [through a collective bargaining agreement] consented to the collection and use of the [biometric] data.” The parties did not dispute that the union had consented to the collection of biometric information such as fingerprints for payroll purposes under the CBA. The plaintiff argued, however, that his BIPA claim was not preempted because he was not a union member and therefore not covered by the collective bargaining agreement.

The Court noted that the Seventh Circuit had not ruled on the issue of whether an employee who was not yet a member of a union should be considered a member of the bargaining unit and covered by the consent in the CBA. Judge Harjani therefore reviewed decisions from other Courts of Appeals, and held, in agreement with those precedents, that a non-union employee performing a job encompassed within the defined bargaining unit covered by the CBA is covered by the CBA. The Court reviewed the language of the applicable description of the relevant bargaining unit from an order of the National Labor Relations Board and found that the plaintiff’s job was within the scope of that unit. Therefore, the Court held that the employee was a member of the bargaining unit and covered by the CBA.  As a result, the state law claim was preempted by the federal law of labor relations, and any claim the plaintiff had could only be brought under the grievance/arbitration provisions of the CBA.

BIPA can create significant liabilities for companies that may collect or use biometric information through fingerprint scans, facial recognition, and other means. When faced with a BIPA lawsuit seeking significant damages, it is important to immediately contact trusted legal advisors who can help identify potential defenses and strategies to limit the company’s risks.

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